Sunday, March 04, 2007

Last Monday's Trial

So last Monday, I took the case I was talking about when I was writing my appellate brief. The basics of the case were this: the landlord sought to evict the defendant based on his use of the premises for illegal purposes.

Was the defendant running a house of ill-repute? Using it to deal drugs? Using it to launder money?

Nope. Apparently, the landlord had sent over a repairman to deal with an issue on the premises. Even though no notice had been given to the tenant, the landlord allowed the repairman in to do the work. And saw a bong on a table in the apartment. No pot was seen being smoked. No plants were being cultivated. No drug deals were going down. There was a bong sitting on a table.

After miraculously mentioning this to the landlord, the landlord promptly served a three day notice to quit.

Now it needs to be mentioned that the defendant had previously fallen behind in the rent a few months earlier and was still paying it off. When the landlord served the notice, my client, without telling anyone, withheld the payment under the theory that the landlord had breached the agreement. So the landlord's attorney promptly went to court on the agreement from the previous case and got a judgment against the defendant for possession (meaning the sherriff would put the defendant on the schedule be evicted).

Now, while this was going on, the landlord filed another suit against the defendant to evict him. Both sides went through the motions of filing complaints and answers. Showing up for the settlement conferences and then for trial.

So I arrive on the scene. Litigation bag full of jury instructions, motions in limine, and even an idea of what to do with the case. The opposing counsel in this case is a woman I have dealt with on a few other occasions. To say that she is difficult to deal with under the best of circumstances is like saying the Pope is Catholic. The presiding judge, being short of courtrooms, sent us out into the hallway to try and work something out.

The conversations went something like this:

Me: So is there any deal to be offered?

Opposing Counsel: Well... we've already got the Sheriff on schedule to evict him next Wednesday. Does your client really want another eviction on his record for pot?

Me: This is San Francisco, given the choice between a judgment for smoking pot and a judgment for not paying rent, which do you think a landlord is going to care about?

OC: Well... the pot of course

Me: [silent, looking at the opposing counsel with the look one gives a child thinks that they are going to get to stay up late just because they are cute]

OC: Maybe your right.

Me: [giving that nod that says "You're an idiot I just don't want to say it"] Besides, isn't it a little early to have the sheriff scheduled?

OC: Well, we decided to seek judgment on the old case for violating his lease.

Me: So then why are we here?

OC: What do you mean?

Me: You already have possession of the property. The only thing an unlawful detainer concerns is possession. You haven't asked for any money damages. You haven't asked for any per diem past the three day notice. The only thing you have asked for is attorney fees.

OC: Well... we... I...

Me: Personally, this looks like you are running your clients bill. Now, I'm not saying that yet, but if there is nothing else that you are seeking, I cannot possibly see another reason why you would have told your client to file the case.

OC: I....well....

Me: So why are we here?

OC: Maybe I should dismiss this case....

Me: You do what you gotta do, but if its anything other than dismissal, I will oppose it.

OC: You can't win. He broke the law...

Me: Maybe not, but I can tie this up for so long, your client is not going to be happy with the bill. And you won't ever collect off this guy, and you know that.

OC: Maybe I should dismiss it.

Me: [Looking at her with my look that says "make a decision, I haven't slept in three days."]

OC: I'm going to dismiss the case.

So she dismissed the case a few minutes later. In retrospect, I should have let her force this case to a trial. Based on the fact that they had a judgment already for the property, I simply could not lose the case since a part of prima facie burden of the plaintiff is that possession has to be in dispute. The judgment would have been evidence that it wasn't, especially in light of the sheriff having scheduled the property for eviction already. On the other hand, it was a lot of fun beating up on her hallway.

Oh well. That makes 36 cases taken to the brink of a jury trial. I have yet to get one to a jury. Maybe 37'll be different.

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